TMI Blog2020 (12) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment which has become final if no incriminating material is found during the search. DR failed to bring any contrary fact to our notice that any incriminating material was found during the search. The AO has not filed even a single piece document to support the grounds of appeal raised in these appeals. No contrary law is brought to our notice. Appeal of the Revenue is dismissed. - I.T(SS)A No’s.272/AHD/2016 & 273/AHD/2016 - - - Dated:- 13-11-2020 - Shri Pawan Singh, Hon'ble Judicial Member And Shri Arjun Lal Saini, Hon'ble Accountant Member For the Assessee : Shri Rasesh Shah CA For the Revenue : Shri Sreenivas T.Bidari CIT(DR) ORDER PER PAWAN SINGH, JM: 1. These two appeals by the Revenue are directed against the order of Learned Commissioner of Income Tax (Appeals)[Ld.CIT(A)], Surat dated 17.06.2016 for A.Y. 2009-10 and 2010-11. 2. In both the appeals the Revenue has raised certain common grounds of appeal except variation of addition, the Ld.CIT(A) passed consolidated order for both the assessment years, therefore, with the consent of the parties, both the appeals were heard and are decided by common order. For appreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 1,85,10,810/-. The Return of Income was processed and accepted under section 143(1) of the Act. A search action under section 132 was carried out on 18.02.2014 on the premises of the assessee. Consequent upon the search a notice under section 153A dated 28.11.2014 was issued to the assessee to file Return of Income for the year under consideration (AY 2009-10). 4. In response to notice under section 153A of the Act, the assessee furnished Return of Income on 27.02.2014 declaring income of ₹ 1,85,10,810/-. The Assessing Officer (AO) after serving notice under section 143(2) of the Act proceeded for re-assessment of income furnished in response to notice under section 153A of the Act. During the assessment the AO issued notice to the assessee vide notice dated 16.03.2016 as to why the share capital of ₹ 3.13 crore raised during the A.Y. 2009-10 and ₹ 3.57 crore in A.Y. 2010-11 should not be treated as unexplained cash credit. The AO also mentioned in the show cause notice that the investor company has no creditworthiness to make investment. It was also mentioned that during the search action stamen of one of the Director namely Jayesh Mistry was recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bul Chawla [2015] 93 CCH 0210 (DelhiHC). The reliance by the Ld. CIT(A) in case of Kabul Chawla(supra) is placed. As per explanation in section 153A(d), the AO has power to assess or re-assess the total income in respect of six assessment years. Nowhere is it mentioned that AO cannot make assessment under section 153A if not incriminating material is found. The Ld.CIT(A) has not appreciated the fact that during the course of assessment proceedings the assessee was asked to prove identity, credit worthiness of shareholders and the genuineness of the transaction. The assessee stated that he has discharged the onus under section 68 of the Act to prove the identity, credit worthiness and genuineness of share capitals by submitting relevant evidences viz.. name, address PAN, Income tax Acknowledgment, copy of bank statements and reply filed by the shareholders in response to notice under section 133(6) of the Act. The AO while making addition rebutted the submission of assessee. The assessee could not prove to the satisfaction of AO the investor company is the real and genuine company. The identity of Shareholder Company is not established. The share application money was unaccounted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -10 or for AY 2010-11 was pending when notice under section 153A on 28.11.2014 was served upon the assessee. Even the time period for issuing notice under section 143(2) for both assessment years had already elapsed. The AO issued notice under section 153A on 28.11.2014. In the entire assessment order the AO has nowhere mentioned that any incriminating material related with the share capital was unearthed during the survey on 18.02.2014. The assessee during the assessment proceedings initiated in pursuance of notice under section 153A, specifically stated that no addition can be made in the completed assessment in absence of incriminating material. No material was brought on record by AO to counter the statement of the assessee that such transaction was not disclosed or made known in the course of original assessment. 10. The Hon'ble Delhi High Court in CIT Vs. Kabul Chawla (supra) held that completed the assessment can be interfered by the AO while making assessment under section 153A of the Act only on the basis of incriminating material unearthed during the course of search which was not produced or not already disclosed or made known in the course of original assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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